Citation Nr: 0733572
Decision Date: 10/25/07 Archive Date: 11/02/07
DOCKET NO. 06-21 979 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Scott Shoreman, Associate Counsel
INTRODUCTION
The veteran had active service from July 1969 to June 1973.
His medals and decorations include a Vietnam Campaign Medal,
a Vietnam Service Medal with One Bronze Star, and a Combat
Action Ribbon.
This matter comes before the Board of Veterans Appeals
(Board) on appeal from a July 2004 decision of the Department
of Veterans Affairs (VA) Regional Office (RO).
FINDINGS OF FACT
1. Resolving doubt in the veteran's favor, bilateral hearing
loss is due to acoustic trauma in service.
2. Resolving doubt in the veteran's favor, tinnitus is due
to acoustic trauma in service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was incurred in service. 38
U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2007); 38
C.F.R. §§ 3.303, 3.304, 3.385 (2007).
2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110,
1154, 5107; 38 C.F.R.
§ 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Public Law
No. 106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code, concerning the notice and assistance to be afforded to
claimants in substantiating their claims. VCAA § 3(a), 114
Stat. 2096, 2096-97 (2000) (now codified as amended at 38
U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007)).
In addition, VA published regulations, which were created for
the purpose of implementing many of the provisions of VCAA.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in
pertinent part, at 38 C.F.R. § 3.159 (2007)).
It appears that in this case the medical opinion and clinical
records on file are sufficient to support a grant of service
connection for the claimed hearing loss and tinnitus. Thus,
the Board finds that any errors on the part of VA in
fulfilling its duties under the VCAA with respect to this
claim are rendered moot.
II. Analysis
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated by active
military service. 38 U.S.C.A. § 1110 (West 2002 & Supp.
2007); 338 C.F.R. § 3.303(a) (2007).
Service connection may be granted for disease that is
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. §
3.303(d).
The law also provides that, even where there is no record of
organic disease of the nervous system (e.g., sensorineural
hearing loss or tinnitus) in service, its incurrence
coincident with service will be presumed if it was manifest
to a compensable degree within one year after service. 38
U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307,
3.309(a) (2007).
The U.S. Court of Appeals for Veterans Claims (Court) has
held that in order to prevail on the issue of service
connection, there must be medical evidence of a current
disability, medical, or in certain circumstances lay,
evidence of in-service incurrence or aggravation of a disease
or injury, and medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickman v. West, 12 Vet. App. 247, 253 (1999).
Where there is chronic disease shown as such in service or
within the presumptive period under 38 C.F.R. § 3.307 so as
to permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date,
however remote, are service-connected, unless clearly
attributable to intercurrent causes. This rule does not mean
that any manifestation in service will permit service
connection. To show chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." 38 C.F.R. § 3.303(b).
When the disease identity is established, there is no
requirement of evidentiary showing of continuity. When the
fact of chronicity in service is not adequately supported,
then a showing of continuity after discharge is required to
support the claim. 38 C.F.R. § 3.303(b).
The veteran maintains that he developed hearing loss and
tinnitus as a result of acoustic trauma during military
service. The veteran testified at his June 2007 hearing that
he served on the USS George K. MacKenzie during which time he
had three nine-month tours in Vietnam. During these tours he
said that he was exposed to the firing of five-inch 38's at
close range. At that time he noticed a loud buzzing in his
ears and he said that today he sleeps with the television on
because of it. Because these claims involve similar issues
and evidence, and as similar legal principles apply, the
Board will address them in a common discussion.
The Board notes here that the lack of any evidence that the
veteran exhibited hearing loss and tinnitus during service is
not fatal to his claim. The laws and regulations do not
require in service complaints of or treatment for hearing
loss in order to establish service connection. See Ledford
v. Derwinski, 3 Vet.App. 87, 89 (1992). As noted by the
Court:
[W]here the regulatory threshold
requirements for hearing disability are
not met until several years after
separation from service, the record must
include evidence of exposure to disease
or injury in service that would adversely
affect the auditory system and post-
service test results meeting the criteria
of 38 C.F.R. § 3.385 . . . . For
example, if the record shows (a) acoustic
trauma due to significant noise exposure
in service and audiometric test results
reflecting an upward shift in tested
thresholds in service, though still not
meeting the requirements for disability
under 38 C.F.R. § 3.385, and (b) post-
service audiometric testing produces
findings meeting the requirements of 38
C.F.R. § 3.385, rating authorities must
consider whether there is a medically
sound basis to attribute the post-service
findings to the injury in service, or
whether they are more properly
attributable to intercurrent causes.
Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a
brief of the VA Secretary).
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, or 4000 Hz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies at
500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater;
or when speech recognition scores using the Maryland CNC Test
are less than 94 percent. 38 C.F.R. § 3.385 (2007). Even if
disabling loss is not demonstrated at separation, a veteran
may establish service connection for a current hearing
disability by submitting evidence that a current disability
is causally related to service. See Hensley v. Brown, 5 Vet.
App. 155, 160 (1993).
The Board notes that the threshold requirement for service
connection to be granted is competent medical evidence of the
current existence of the claimed disorder. Degmetich v.
Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet.
App. 223 (1992). In this case the threshold is met because
the veteran's bilateral October 2004 test results meet two of
the requirements of 38 C.F.R. § 3.385: an auditory threshold
of 40 decibels or greater and speech recognition scores less
than 94 percent. He was also diagnosed with tinnitus.
The veteran's test results at separation discussed above did
not meet any of the requirements of 38 C.F.R. § 3.385.
Therefore, the question that must be answered in this case is
whether the hearing loss the veteran has now is the result of
the noise trauma he underwent while serving. In this case,
the veteran has earned a Combat Action Ribbon, and he
testified that the in-service noise trauma occurred without
the benefit of ear protection. 38 U.S.C.A. § 1154 makes it
abundantly clear that special considerations attend the cases
of combat veterans. Jensen v. Brown, 19 F.3d 1413, 1416 (Fed.
Cir. 1994). Section 1154(b) provides as follows:
In the case of any veteran who engaged in
combat with the enemy in active service
with a military, naval, or air
organization of the United States during
a period of war, campaign, or expedition,
the Secretary shall accept as sufficient
proof of service connection of any
disease or injury alleged to have been
incurred in or aggravated by such service
satisfactory lay or other evidence of
service incurrence or aggravation of such
injury or disease, if consistent with the
circumstances, conditions, or hardships
of such service, notwithstanding the fact
that there is no official record of such
incurrence or aggravation in such
service, and, to that end, shall resolve
every reasonable doubt in favor of the
veteran. Service connection of such
injury or disease may be rebutted by
clear and convincing evidence to the
contrary. The reasons for granting or
denying service connection in each case
shall be recorded in full.
38 U.S.C.A. § 1154 (West 2002 & Supp. 2007).
The Board finds the veteran's statements regarding exposure
to excessive noise from military duties in service to be
credible. Section 1154(b) applies a reduced evidentiary
burden which can be used to establish the incurrence of an
event in service.
Having weighed the evidence both in support and against the
claim of service connection for hearing loss and tinnitus,
the Board concludes that the evidence is not against finding
in favor of the veteran. At the October 2004 VA examination
the veteran reported tinnitus and bilateral hearing loss for
around 20 years that was slowly progressive. He had
particular difficulty with tinnitus in quiet rooms, reported
it as moderately severe, and described it as a constant high
pitched ring. The veteran reported no other significant
recreational or occupational noise exposure besides his
active service as a torpedoman.
Overall the audiologist could not state with any certainty
the etiology of the veteran's current hearing loss and
tinnitus. However, the audiologist opined that the type of
noise exposure reported could conceivably cause or contribute
to hearing loss and tinnitus and that the veteran had classic
noise-induced hearing loss. He further felt that it was
unusual for the veteran to have such a degree of hearing loss
given his age and health.
Therefore, without finding error in the previous action taken
by the RO, the Board will exercise its discretion to find
that the evidence is in relative equipoise, and will conclude
that service connection for hearing loss and tinnitus is
warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
ORDER
Service connection for bilateral hearing loss is granted.
Service connection for tinnitus is granted.
____________________________________________
M. SABULSKY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs